$133,312,786
ASSET SECURITIZATION CORPORATION
CLASS B-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
CLASS B-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
CLASS B-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
CLASS B-4 COMMERCIAL-MORTGAGE PASS-THROUGH CERTIFICATES,
CLASS B-5 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, AND
CLASS B-6 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
Nomura Securities International, Inc.
Two World Financial Center - Building B
New York, New York 10281-1198
April 11, 1997
Dear Sirs:
1. Introduction. Asset Securitization Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $133,312,786 principal
amount of Commercial Mortgage Pass-Through Certificates of the classes stated
above (collectively, the "Certificates") to Nomura Securities International,
Inc. (the "Underwriter"), subject to the terms and conditions set forth herein.
The Certificates have been issued pursuant to a pooling and servicing agreement
(the "Pooling and Servicing Agreement") among the Company, as depositor,
AMRESCO Management, Inc., as servicer (the "Servicer"), and special servicer
(the "Special Servicer"), LaSalle National Bank, as trustee (the "Trustee"),
and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). The Certificates
evidence beneficial ownership interests in the Trust Fund (as defined in the
Pooling and Servicing Agreement) consisting of a pool (the "Mortgage Pool") of
121 mortgage loans (the "Mortgage Loans"), all as described in the Prospectus
(as defined below). The Mortgage Loans have been acquired by the Company from
Nomura Asset Capital Corporation (the "Mortgage Loan Seller") pursuant to a
Mortgage Loan Contribution, Purchase and Sale Agreement (the "Purchase
Agreement"), by and between the Company and the Mortgage Loan Seller. This is
to confirm the arrangements with respect to the purchase of the Certificates by
the Underwriter. Terms not defined herein which are defined in the Pooling and
Servicing Agreement shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
Elections will be made to treat designated portions of the Trust
Fund, exclusive of the Reserve Accounts, Lock Box Accounts, Cash Collateral
Accounts, the Excess Interest and the Default Interest (each as defined in the
Prospectus) (such portions of the Trust Fund, the "Trust REMICs"), and the
Trust REMICs will qualify, as two separate "real estate mortgage investment
conduits" (each, a "REMIC" or, alternatively, the "Upper-Tier REMIC" and the
"Lower-Tier REMIC," respectively) within the meaning of Code Section 860D. The
Reserve Accounts, the Lock Box Accounts and the Cash Collateral Accounts will
be treated as beneficially owned by the respective borrowers for federal income
tax purposes. The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of
the Excess Interest and the Default Interest), proceeds therefrom, the
Collection Account, the Distribution Account and any REO Property, and will
issue (i) certain uncertificated classes of regular interests (the "Lower-Tier
Regular Interests") to the Upper-Tier REMIC and (ii) the Class LR Certificates,
which will represent the sole class of residual interest in the Lower-Tier
REMIC. The Upper-Tier REMIC will hold the Lower-Tier Regular Interests in the
Upper-Tier REMIC Distribution Account in which distributions thereon will be
deposited, and will issue (i) the classes of regular interests represented by
the Regular Certificates and (ii) the Class R Certificates, which will
represent the sole class of residual interests in the Upper-Tier REMIC. The
Class V-1 and Class V-2 Certificates will represent pro rata undivided
beneficial interests in the portion of the Trust Fund consisting of Default
Interest and Excess Interest in respect of the Mortgage Loans, respectively,
and such portions will be treated as a grantor trust for federal income tax
purposes.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11
(Registration No. 333-21315) covering the registration of the Certificates,
under the Securities Act of 1933, as amended (the "Act"), including the related
preliminary prospectus, or prospectuses, and either (A) has prepared and filed
an amendment to such registration statement, including a final prospectus, (B)
if the Company has elected to rely upon Rule 430A ("Rule 430A") of the rules
and regulations of the Commission under the 1933 Act (the "Rules and
Regulations"), will prepare and file a prospectus, in accordance with the
provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations, promptly after execution and delivery of this Agreement. The
information, if any, included in such prospectus that was omitted from the
prospectus included in such registration statement at the time it became
effective but that is deemed, pursuant to paragraph (b) of Rule 430A, to be
part of such registration statement at the time it became effective is referred
to herein as the "Rule 430A Information". Each prospectus used before the time
such registration statement became effective, and any prospectus that omits the
Rule 430A Information that is used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto, as
amended to the date hereof and including, if applicable, the Rule 430A
Information, is herein called the "Registration Statement," and the prospectus
included in such Registration Statement is herein called the "Prospectus",
except that, if the final prospectus first furnished to the Underwriter after
the execution of this Agreement for use in connection with the offering of the
Certificates differs from the prospectus included in such Registration
Statement (whether or not such prospectus is required to be filed pursuant to
Rule 424(b)), the term "Prospectus" shall refer to the final prospectus first
furnished to the Underwriter for such use.
The Company hereby agrees with the Underwriter as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as of the date hereof, and as of the
Closing Date referred to in Section 3(b) hereof as follows:
(a) The Registration Statement has become effective under the
Act, and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act. On the effective
date of the Registration Statement and at all times subsequent thereto,
up to the Closing Date, (A) the Registration Statement conformed and will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, and did not and will not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (B) the Prospectus and any amendments or supplements
thereto will conform in all material respects to the requirements of the
Act and the Rules and Regulations, will contain all material information
included in any other prospectus relating to the Mortgage Pool and will
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
are made, not misleading; provided, however, that the foregoing does not
apply to statements or omissions in such documents based upon written
information furnished to the Company by the Underwriter specifically for
use therein.
(b) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its assets and
conduct its business as described in the Prospectus, and to enter into
and perform its obligations under this Agreement, the Purchase Agreement
and the Pooling and Servicing Agreement; and the Company has received no
notice of proceedings relating to the revocation or modification of any
license, certificate authority or permit applicable to its owning such
properties or conducting business which singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of the business, operations,
financial condition, assets or income of the Company. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which it owns or leases property
of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that a failure to so
qualify or be in good standing would have a material adverse effect on
the business, operations, condition (financial or otherwise), affairs,
assets, regulatory situation or business prospects of the Company. The
Company has no subsidiaries.
(c) This Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding instrument of the
Company in accordance with its terms.
(d) The Pooling and Servicing Agreement and the Purchase
Agreement, when executed and delivered as contemplated hereby and
thereby, will have been duly executed and delivered by the Company and
will constitute, when so executed and delivered, a legal, valid and
binding instrument enforceable against the Company in accordance with its
terms, except as enforceability may be limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and (ii) general principles
of equity and the discretion of the court (regardless of whether
enforceability of such remedies is considered in a proceeding in equity
or at law); and the Pooling and Servicing Agreement and the Purchase
Agreement conform to the description thereof in the Prospectus.
(e) The issuance of the Certificates has been duly authorized
by the Company and have been validly issued and outstanding; and the
Certificates will be entitled to the benefits provided by the Pooling and
Servicing Agreement. The Certificates are in all material respects in the
form contemplated by the Pooling and Servicing Agreement; and the
Certificates will conform in all material respects to the description
thereof contained in the Prospectus.
(f) As of the Closing Date, the Certificates, the Pooling and
Servicing Agreement and the Purchase Agreement will each conform in all
material respects to the respective descriptions thereof contained in the
Prospectus and such descriptions constitute a fair and accurate summary
of the provisions thereof and the transactions contemplated therein.
(g) The representations and warranties made by the Company in
the Pooling and Servicing Agreement and made in any Officer's
Certificates of the Company delivered pursuant to the Pooling and
Servicing Agreement will be true and correct at the time made and on the
Closing Date and you may rely on the representations and warranties made
by us to the parties to the Pooling and Servicing Agreement as if such
representations and warranties were included in this Section 2(a).
(h) None of (A) the issuance and sale of the Certificates,
(B) the execution, delivery or performance by the Company of this
Agreement, the Purchase Agreement or the Pooling and Servicing Agreement,
(C) the consummation of the transactions contemplated herein and therein,
and (D) compliance by the Company with the provisions hereof or thereof,
violates, conflicts with or constitutes a breach of any of the terms or
provisions of, or, after giving effect to the transactions contemplated
herein and therein, will violate, conflict with or constitute a breach of
any of the terms or provisions of, or a default under (or an event that
with notice or the lapse of time, or both, would constitute a default),
or require consent under, or result in the imposition of a lien or
encumbrance on any assets of the Company, or an acceleration of any
indebtedness of the Company pursuant to, (1) the certificate of
incorporation or bylaws of the Company, (2) any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it or its assets is or may be
bound, (3) any statute, rule or regulation applicable to the Company or
any of its assets or (4) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or
any of its assets, except for any violations, defaults, conflicts or
breaches which are not, in the aggregate, material to the business,
operations, condition (financial or otherwise), affairs, assets,
regulatory situation or business prospects of the Mortgage Pool, in the
aggregate, or the Company.
(i) No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, (A)
any court or governmental agency, body or administrative agency or (B)
any other person is required for (1) the execution, delivery and
performance by the Company of this Agreement, the Purchase Agreement or
the Pooling and Servicing Agreement, (2) the transactions contemplated
herein or therein or (3) the issuance and sale of the Certificates and
the transactions contemplated hereby and thereby, except such as have
been obtained and made under the Act and state securities or Blue Sky
laws and regulations or such as may be required by the NASD.
(j) There is (A) no action, suit, investigation or proceeding
before or by a court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the best knowledge of
the Company threatened or contemplated to which the Company is or may be
party or to which the business or the assets of the Company are subject,
(B) no statute, rule, regulation or order that any governmental agency or
that has been proposed by any governmental body and (C) no injunction,
restraining order or order of any nature by a federal or state court or
foreign court of competent jurisdiction to which the Company is or may be
subject or to which the business or assets of the Company are or may be
subject, that, in the case of clauses (A), (B) and (C) above, (1) is
required to be disclosed in the Prospectus and that is not so disclosed,
or (2) could reasonably be expected to (x) result in a material adverse
effect on the business, operations, condition (financial or otherwise),
affairs, assets, regulatory situation or business prospects of the
Mortgage Pool, in the aggregate, or the Company, (y) interfere with or
adversely affect the issuance or marketability of the Certificates
pursuant hereto or (z) in any manner materially adversely affect the
performance by the Company of its obligations under or the validity or
enforceability of this Agreement, the Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates.
(k) The transfer of the Mortgage Loans to the Trust Fund at
or prior to the Closing Date and the sale by the Company of the
Certificates will be treated by the Company for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt.
(l) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus except as
otherwise stated therein, (A) there has been no material adverse change
in the Mortgage Pool, in the aggregate, whether or not arising in the
ordinary course of business and (B) there have been no transactions
entered into by the Company which are material, other than those in the
ordinary course of business.
(m) Neither the Company nor the Trust Fund is or, as a result
of the offer and sale of the Certificates as contemplated in the
Prospectus and in this Agreement will become, an "investment company" as
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or an "affiliated person" of any such
"investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company
Act.
3. Purchase, Sale and Delivery. (a) On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell the
Certificates to the Underwriter. The purchase price for the Certificates will
be 76.41% of the aggregate initial principal balance thereof as of March 27,
1997 (the "Cut-off Date"), plus accrued interest from April 11, 1997 up to but
not including the Closing Date, before deducting expenses payable by the
Company.
(b) Delivery of the Certificates shall be made, against payment of
the purchase price therefor, at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location
as may be mutually acceptable. Such delivery and payment shall be made at
10:00 A.M. New York City time, on April 16, 1997 or at such other time as
shall be agreed upon by the Underwriter and the Company. The time and
date of such delivery and payment are herein called the "Closing Date."
(c) Delivery of the Certificates shall be made by the Company to
the Underwriter against payment of the purchase price specified above in
immediately available funds by wire transfer. Unless delivery is made
through the facilities of the Depository Trust Company, the Certificates
so to be delivered will be in definitive, fully registered form, in such
denominations and registered in such names as you request, and will be
made available for inspection and packaging at your office at least
twenty-four hours prior to the Closing Date.
4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public as set
forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriter as follows:
(a) The Company will advise you or your counsel promptly of any
order or communication suspending or preventing, or threatening to
suspend or prevent, the offer and sale of the Certificates, or of any
proceedings or examinations that may lead to such an order or
communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the
Company is advised thereof, and will use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) The Company will not amend the Registration Statement or amend
or supplement the Prospectus prior to the Closing Date unless the
Underwriter shall previously have been advised thereof and shall not have
objected thereto within a reasonable time after being furnished a copy
thereof. The Company shall promptly prepare, upon the Underwriter
request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus that may be necessary or advisable in
connection with the offering of the Certificates.
(c) If at any time after the date hereof when a prospectus relating
to the Certificates is required to be delivered under the Act any event
occurs as a result of which, in the judgment of the Company or in the
reasonable opinion of counsel for the Company or counsel for the
Underwriter, it becomes necessary or advisable to amend the Registration
Statement or to amend or supplement the Prospectus in order to make the
statements in the Prospectus, in the light of the circumstances when such
Prospectus is delivered to a prospective purchaser, not misleading, or if
it is necessary at any time to amend the Registration Statement or to
amend or supplement the Prospectus to comply with the Act, the Company
promptly will (i) notify the Underwriter and (ii) prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
(d) The Company will make generally available to the holders of the
Certificates and will deliver to you, in each case as soon as
practicable, an earnings statement covering the twelve-month period
beginning after the Closing Date, which will satisfy the provisions of
Section 10 (a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all documents and
exhibits thereto), the preliminary prospectus, the Prospectus, and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as you request.
(f) The Company will arrange for the qualification of the
Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you reasonably
designate and will continue such qualifications in effect so long as
reasonably required for the distribution. provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not qualified on the date hereof or to take any
action which would subject it to general or unlimited service of process
in any jurisdiction in which it is not, on the date hereof, subject to
such service of process.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement and will reimburse the
Underwriter for any expenses (including reasonable fees and disbursements
of counsel and accountants) incurred by it in connection with
qualification of the Certificates and determination of their eligibility
for investment under the laws of such jurisdictions as you designate and
the printing of memoranda relating thereto, for any fees charged by the
nationally recognized statistical rating agencies for the rating of the
Certificates, for the filing fee of the National Association of
Securities Dealers, Inc. relating to the Certificates, if applicable, and
for expenses incurred in distributing preliminary prospectuses to the
Underwriter.
(h) The Pooling and Servicing Agreement will provide that, during
the period when a prospectus is required by law to be delivered in
connection with the sale of the Certificates pursuant to this Agreement,
the Servicer or the Trustee will file or cause to be filed, on a timely
and complete basis, all documents that are required to be filed by the
Company or on behalf of the Trust Fund with the omission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(i) So long as the Certificates shall be outstanding, the Company
will deliver to you the annual statement of compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the
Trustee pursuant to the Pooling and Servicing Agreement as soon as
reasonably practicable after such statements are furnished to the
Company.
6. Conditions to the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of
the Company as of the date hereof and the Closing Date, to the accuracy of the
statements made in any officers' certificates (each an "Officer's Certificate")
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a)(i) At the time that this Agreement is executed, Price
Waterhouse shall have furnished to you a letter, addressed to you, and in
form and substance satisfactory to you in all respects, reflecting the
performance of the procedures previously requested by you and including a
statement to the effect that using the assumptions and methodology used
by the Company, all of which shall be described in such letter or the
Prospectus, they have recalculated such numbers, percentages, dates and
amounts included in the tables ("Yield Tables") attached as Appendix A to
their letter and included in the Prospectus as you may reasonably
request, compared the results of their calculations to the corresponding
items in the Prospectus, and found each such number, percentage, date and
amount set forth in the Prospectus to be in agreement with the results of
such calculations. To the extent historical financial delinquency or
related information is included with respect to one or more servicers,
such letter or letters shall also relate to such information.
(a)(ii) At the Closing Date, Price Waterhouse shall have furnished
to you a letter, addressed to you, and in form and substance satisfactory
to you in all respects and dated as of the Closing Date, (x) to the
effect that they reaffirm the statements made in the letter furnished
pursuant to Section 6(a)(i) as of the Closing Date, and (y) relating, to
the extent such information is not covered in the letter or letters
provided pursuant to clause (a)(i), to a portion of the information set
forth on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement or, if a letter relating to the same information is provided to
the Trustee, indicating that you are entitled to rely upon its letter to
the Trustee.
(b) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not
have been any change, or any development involving a prospective change,
in or affecting the Mortgage Pool, in the aggregate, the effect of which,
in any case, is, in your judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery
of the Certificates as contemplated by the Registration Statement and the
Prospectus. All actions required to be taken and all filings required to
be made by the Company under the Act prior to the sale of the
Certificates shall have been duly taken or made; and prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted, or to the knowledge of the Company or you,
shall be contemplated by the Commission or by any authority administering
any state securities or Blue Sky law.
(c) The Certificates shall be given the rating set forth in
Schedule I hereto by Fitch Investors Service, L.P. ("Fitch") and/or
Standard & Poor's Rating Services ("S&P").
(d) You shall have received the opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, counsel for the Company, dated the Closing Date, reasonably
satisfactory to you.
(e) You shall have received a letter from ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
in-house counsel for the Company, dated the Closing Date, reasonably
satisfactory to you.
Each opinion also shall relate to such other matters as you
reasonably may request. With respect to such opinions, each counsel: (1)
may express its reliance as to factual matters on the representations and
warranties made by, and on certificates or other documents finished by
officers of, the parties to this Agreement, the Pooling and Servicing
Agreement and the Purchase Agreement; (2) may assume, as applicable, the
due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto; (3) may qualify
such opinion only as to the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the
State of Delaware; and (4) may, to the extent necessary, rely as to the
laws of states other than New York on the opinion of local counsel.
(f) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for
the Trustee, an opinion or opinions, dated as of the Closing Date, with
respect to such matters as the Underwriter shall reasonably request, in
form and substance reasonably satisfactory to the Underwriter.
(g) You shall have received from ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP,
counsel for the Servicer, an opinion or opinions, dated as of the Closing
Date, with respect to such matters as the Underwriter shall reasonably
request, in form and substance reasonably satisfactory to the
Underwriter.
(h) You shall have received Officer's Certificates signed by such
of the principal executive, financial and accounting officers of the
Company as you may request, dated as of the Closing Date, in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company in
this Agreement are true and correct in all material respects; that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Date;
that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the dates as of which
information is given in the Prospectus as amended or supplemented, and
except as set forth or contemplated in the Prospectus, there has not been
any material adverse change in the Mortgage Pool, in the aggregate; that,
except as otherwise stated in the Prospectus, there are no material
actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, affecting
the Company or the transactions contemplated by this Agreement; and that
attached thereto are true and correct copies of a letter or letters from
one or more nationally recognized statistical rating agencies confirming
that the Certificates have received the ratings set forth in Schedule I
hereto and that such ratings have not been lowered since the date of such
letter.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to
the obligation of the Underwriter set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by the Underwriter, the Company will reimburse the
Underwriter, upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Certificates.
8. Indemnification and Contribution. The Company agrees with
the Underwriter that:
(a) The Company will indemnify and hold harmless the
Underwriter and each person who controls the Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several to which they may
become liable under the 1933 Act, the 1934 Act, or other federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or the Prospectus, or in any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company as herein stated by the Underwriter specifically for use in connection
with the preparation thereof.
(b) The Underwriter will indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to written information furnished to the
Company as herein stated by or on behalf of the Underwriter specifically for
use in connection with the preparation of the documents referred to in the
foregoing indemnity. This indemnity will be in addition to any liability that
the Underwriter may otherwise have. The Company and the Underwriter each
acknowledge that (i) the statements set forth in the second sentence of the
second to last paragraph of the cover page, (ii) the statements set forth in
the first sentence of the last paragraph of the cover page, (iii) the
information set forth in the second paragraph under the caption "Plan of
Distribution" and (iv) the second sentence of the fifth full paragraph under
the caption "Plan of Distribution" included in the Prospectus constitute the
only information furnished in writing by or on behalf of the Underwriter for
inclusion in the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled (i) to
participate therein, and (ii) to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties; upon receipt of notice from the indemnifying party to such
indemnified party of its election to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the Underwriter in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to an indemnified party under this Section
8, then the Company and the Underwriter shall contribute to the amount paid or
payable by such indemnified party as a result of the aggregate losses, claims,
damages and liabilities referred to in paragraph (a) or (b) above, in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Company on the one hand and the Underwriter on the other from the offering
of the Certificates and (ii) the relative fault of the Company on the one hand
and the Underwriter on the other in connection with the statement or omission
that resulted in such losses, claims, damages and liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriter shall be deemed to be in the same proportion as the
total proceeds from the offering of the Certificates (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions (before deducting expenses) received by the Underwriter with
respect to such offering, in each case as set forth on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
paragraph (d) were to be determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this paragraph (d). Notwithstanding the provisions of this paragraph (d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Certificates underwritten and
distributed by it were offered to the public exceeds the amount of any damages
that the Underwriter has otherwise been required to pay or become liable to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8 each person, if any, who controls the Underwriter within the
meaning of either the 1933 Act of the 1934 Act shall have the same rights to
contribution as the Underwriter, and each person, if any, who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each
director and each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Termination. (a) This Agreement shall be subject to termination
in the absolute discretion of the Underwriter, by notice given to the Company
prior to delivery of and payment for the Certificates, if prior to such time
(i) trading of securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in the State of New York
shall have been declared by either Federal or New York State authorities or
(iii) there shall have occurred any material outbreak or declaration of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the reasonable judgment
of the Underwriter, impracticable to market the Certificates on the terms
specified herein.
(b) If this Agreement is terminated in accordance with
Section 9(a), except if the event described in Section 9(a)(i) occurred
directly or indirectly as a result of the action of the Underwriter and such
event is the basis upon which the Underwriter seeks termination, the Company
shall reimburse the Underwriter for the reasonable fees and expenses of its
counsel and for such other out-of-pocket expenses as shall have been incurred
in connection with this Agreement and the proposed purchase of the
Certificates, and upon demand, the Company shall pay the full amount thereof to
the Underwriter.
(c) This Agreement will survive delivery of and payment for
the Certificates. The provisions of Sections 7, 8 and 12 shall survive the
termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to the Underwriter at 2 World Financial
Center - Building B, New York, New York 10281-1198, attention of Manager -
Mortgage Finance Department; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 2 World Financial Center -
Building B, New York, New York 10281-1198, attention of Manager Mortgage
Finance Department.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
12. Applicable Law; Counterparts. THIS AGREEMENT WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This
Agreement may be executed in any number of counterparts, each of which shall
for all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
ASSET SECURITIZATION CORPORATION
By: Name:_____________________________
_____________________________
Title:
The foregoing Underwriting Agreement
hereby is confirmed and accepted as
of the date first above written.
NOMURA SECURITIES INTERNATIONAL, INC.
By: _________________________
Title:
SCHEDULE I
Initial aggregate Certificate Balance of the Units: $133,312,786.
INITIAL
CERTIFICATE PASS-THROUGH FITCH
CERTIFICATES BALANCE RATE S&P RATING RATING
-----------------------------------------------------------------------------
Class B-1 Certificates........ $35,082,312 7.525% BB+ BB+
Class B-2 Certificates........ $35,082,312 7.525% BB BB
Class B-3 Certificates........ $14,032,925 7.525% BB- BB-
Class B-4 Certificates........ $21,049,387 7.525% B+
Class B-5 Certificates........ $14,032,925 7.525% B
Class B-6 Certificates........ $14,032,925 7.525% B-
